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State of Queensland v Dodds (No 2)[2021] ICQ 9

State of Queensland v Dodds (No 2)[2021] ICQ 9

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

State of Queensland v Dodds (No 2) [2021] ICQ 009

PARTIES:

STATE OF QUEENSLAND

(appellant)

v

GLEN DODDS

(respondent)

FILE NO/S:

C/2021/7

PROCEEDING:

Appeal

DELIVERED ON:

10 June 2021 ex tempore

HEARING DATE:

10 June 2021

MEMBER:

Davis J, President

ORDERS:

  1. Order 3 made by the Queensland Industrial Relations Commission on 25 March 2021 be set aside.
  2. In lieu of order 3 it is ordered:

“Glenn Dodds be appointed to the higher classification role as an AO7, Principal Project Officer within Strategic Initiatives (formerly Priority Projects), Corporate Services.”

  1. The appeal is otherwise dismissed.
  2. Liberty to apply to both parties.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – EMPLOYEES IN EMPLOYMENT OF STATE – EMPLOYMENT CONDITIONS – EMPLOYEES PERFORMING HIGHER DUTIES – GENERALLY – where Mr Dodds is an employee of the State Government (the State) – where Mr Dodds held a permanent position as an AO6 Senior Consultant – where Mr Dodds had been acting in a higher classification role as an AO7 Principal Project Officer for over one year – where Mr Dodds applied to the Chief Executive of the Department for permanent appointment to the higher classification role – where the request was refused – where Mr Dodds appealed to the Queensland Industrial Relations Commission (QIRC) – where the Industrial Commissioner directed that the matter be dealt with on the papers unless otherwise ordered – where Mr Dodds filed and served submissions in the QIRC appeal  attaching a chain of email correspondence – where the State did not seek to make further submissions – where the Industrial Commissioner allowed the appeal and ordered that Mr Dodds be appointed to the higher classification role – where the State appealed the decision of the Industrial Commissioner – where the State applied to adduce further evidence to support the submission that it was denied the opportunity to file further submissions in response to the chain of email correspondence annexed to Mr Dodds’ submissions – where the State submitted that the Industrial Commissioner asked herself the wrong question in assessing the State’s decision to refuse Mr Dodds’ request for appointment to the higher classification role – whether the State was denied procedural fairness in the proceedings before the QIRC – whether the Industrial Commissioner incorrectly considered the question in the appeal before the QIRC and therefore, committed jurisdictional error

Industrial Relations Act 2016, s 562, s 562B, s 562C

Public Service Act 2008, s 149C, s 194, s 197

CASES:

Cox v State of Queensland (Queensland Health) [2021] QIRC 99, cited

Keith v Gal [2013] NSWCA 339, cited

Kioa v West (1985) 159 CLR 550, cited

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, cited

Scott v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 126, cited

SOLICITORS:

GR Cooper, Crown Solicitor for the appellant

Together Queensland Industrial Union of Employees for the respondent

  1. [1]
    There are three matters before the Court:
  1. an application by the State to appeal a decision of Industrial Commissioner Power reversing a decision not to appoint Mr Dodds to a permanent position pursuant to s 149C of the Public Service Act 2008 (PS Act);
  2. an application to adduce fresh evidence on the appeal;
  3. an application to stay the decision of Industrial Commissioner Power pending determination of the appeal to this Court.

Background/the decision below

  1. [2]
    The respondent, Glen Dodds, is a State Government employee.  He held a permanent position of AO6 Senior Consultant within a division of the Department of Communications, Housing and Digital Economy.
  2. [3]
    Between 3 December 2018 and 31 January 2021,[1] Mr Dodds had been acting in a higher classification role as AO7 Principal Project Officer within Strategic Initiatives, Corporate Services.
  3. [4]
    Mr Dodds applied to the Department’s Chief Executive for permanent appointment to that position pursuant to s 149C(3) of the PS Act.
  4. [5]
    On 24 December 2020, the Human Resource Manager, Corporate Services, Mr Borserini, refused the request.
  5. [6]
    In doing so, the following reasons were given:

Higher classification conversion decision

After considering your request to be permanently employed in the position of AO7, Principal Project Officer… within Priority Projects, Corporate Services, and the circumstances of your temporary placement in that position, the Assistant Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement.

The reasons for the Assistant Director-General's decision are as follows:

 The purpose of your current engagement is to perform work necessary to meet a short-term increase in workload.

 At the conclusion of your current engagement on 29 January 2021, there will no longer be a continuing need for you to be engaged in the position of AO7, Principal Project Officer…within Priority Projects, Corporate Services.

I would like to take this opportunity to thank you for your continued commitment to the department. Should you continue your engagement in the position of AO7, Principal Project Officer… within Priority Projects, Corporate Services, you may submit another request for permanent employment in this position on 3 December 2021. In addition, if the position becomes a substantive vacancy during your temporary placement in the position, you may make an earlier request for permanent employment in this position.” (emphasis added)

  1. [7]
    Mr Dodds appealed to the Queensland Industrial Relations Commission (the QIRC) pursuant to s 194 of the PS Act as regulated by s 562 of the Industrial Relations Act 2016 (the IR Act).
  2. [8]
    The grounds of appeal by Mr Dodds to the QIRC were:

 the decision-maker has failed to give adequate consideration to the genuine operational requirements of the Respondent, specifically the ongoing need for the functions that the Appellant’s role performs;

  • the decision-maker has erred by considering that the purpose of the Appellant’s current engagement is to perform work necessary to meet a short-term increase in workload when the work that the Appellant performs in is ongoing and not of a temporary nature; and
  • the decision-maker has erred as a question of fact in their determination that there will no longer be a continuing need for the Appellant to be engaged in the higher classification position beyond 29 January 2021.”
  1. [9]
    On 18 January 2021, Industrial Commissioner Power made the following directions for the hearing of the appeal to the QIRC:

“1. That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions (of no more than five pages in length and any relevant attachments) in response to the Appellant's submissions by 4.00 pm on Monday, 1 February 2021.

  1. That, if needed, the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) in reply to the submissions of the Respondent, by 4.00 pm on Monday, 15 February 2021.
  2. That the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 unless otherwise ordered.” (emphasis added)
  1. [10]
    Submissions were filed and served by the State.  Of some importance:

 the Respondent submits that the Appellant’s current temporary placement in the higher classification position, is to perform work necessary to meet a short-term increase in workload, specifically to work as part of a project team to undertake whole-of-department strategy, communication, executive services and Ministerial liaison which has an expected end date of 31 January 2021. The Strategic Initiatives team was created as a temporary team required to undertake project work necessary to respond to corporate priorities;” (emphasis added)

And later:

 the Respondent submits that, as the Appellant’s current temporary placement in the higher classification position has been to perform work necessary to meet a short-term increase in workload, specifically to work as part of a project team to undertake whole-of-department strategy, communication, executive services and Ministerial liaison which has an expected end date of 31 January 2021, there will no longer be a continuing need for the Appellant to be placed in the higher classification position, once this work is completed

  • the Respondent does not have a genuine operational need to permanently employ the Appellant in the higher classification position once the project work is completed. The Respondent submits that it is not appropriate or viable to offer to permanently employ the Appellant in that role;” (emphasis added)
  1. [11]
    In due course, submissions were filed and served by Mr Dodds.  That occurred on 15 February 2021.
  2. [12]
    Attached to Mr Dodds’ submissions were a bundle of documents marked “Attachment A”.
  3. [13]
    In Attachment A was an email from Mr Hauenschild who is the Director Strategic Industries.  Mr Hauenschild’s email contains the following:

“Jade,

Answers below as requested.

- What workloads are expected after the termination of temporary contracts?

Strategic Initiatives (previously Priority Projects) was established under HPW’s Portfolio Strategy Division as an ongoing strategy and policy function, not a temporary project team. Temporary positions remain in the team as approvals have not previously been granted for permanent appointment, not because of the temporary nature of work. The current Strategic Initiatives work continuing into 2021 includes:

  • After Strategic Initiatives coordinated the first-ever development of the complete set of six whole-of-government procurement category strategies and A3 summaries, there will be inevitable adjustments as these go through Ministerial approval. Following approval, there will be publishing and communication of the category strategies, and reporting mechanisms need to be put in place to the Queensland Government Procurement Committee and Minister. There will need to be further coordination of implementation and annual updates to the set of six strategies in 2021 and progress monitored against initiatives in the category strategies to support government policy objectives and COVID-19 responses.
  • Blueprint/strategy document for Office of the Chief Advisor Procurement and Procurement Implementation and Compliance Branch - Finalising the strategy document and implementation plan, program management of implementation in 2021 and reporting quarterly to the Queensland Government Procurement Committee. Strategic Initiatives had also been flagged to project-manage some initiatives within the blueprint as well as program manage implementation.
  • Procurement Economic Impacts - A series of inter-related projects to determine the economic impacts of Queensland Government procurement to better inform procurement policy and practice so that government procurement achieves maximum benefits for the Queensland economy, particularly post-COVID-19. This includes and Employment Estimator Model for maintenance expenditure, an Industry Level Economic and Employment Estimator across six procurement spend categories, a Local Economic Multiplier case study of Queensland-based furniture manufacturers, and the Queensland Economic Contribution test case studies and electronic form for data capture. Some initial milestones have been identified to end January 2021 but this is a long-term piece of work in partnership with Treasury, other departments and other jurisdictions to provide robust mechanisms for assessing the economic impacts of government procurement. There is also a NQ stadium case study to finalise for the Minister.
  • Artificial Intelligence and automation for supplier assessment - Scoping potential of AI/automation for more timely and efficient supplier assessment for the procurement compliance team and Building Policy and Asset Management supplier register. This has arisen from the need for more rapid supplier vetting in COVID-19 response to resolve highly manual time-intensive processes and to resolve a capacity issue for assessing building and maintenance prequalified suppliers. This is in partnership with the ·Queensland Government AI Hub. An initial assessment of potential will take place in January 2021. If successful this initiative would allow key staff in Queensland Government Procurement and Building Policy and Asset Management to reduce manual work, concentrate on higher-value work, and produce assessments in a more timely way.
  • Government Employee Housing - Following a detailed review of the GEH model in 2020 in partnership with Treasury, DPC and client agencies, project managed by Strategic Initiatives and with analysis by KPMG, the report has now been finalised and provided to the project board with stakeholders very supportive to continue working with EPW to progress implementation. Following discussion with Richard Cassidy, Strategic Initiatives is now preparing the submission to government (CBRC/budget submission/s), Implementation plan, and reconvening the project board (comprising Treasury, DPC, Education, Health and Police and EPW) to oversee Implementation in 2021, commencing in January 2021.
  • Other work previously flagged for Strategic Initiatives in 2021 includes assisting with updates to the Queensland Procurement Strategy and Policy, assisting to streamline project and program governance for Office of the Chief Advisor Procurement and project managing/stakeholder engagement for a strategic review and restructure of the Queensland Government Procurement on line presence on Internet and ForGov sites, among others.

The three temporary positions are integral to the above work and the majority of it could not progress without them. The team has highly complimentary skills, staff work across multiple concurrent projects and are able to produce a large number of high quality outputs due to the skills and experience of the team and a mature agile approach to managing work.

- Who will be completing the projects that remain unfinished?

That has not yet been determined. The majority of the work outlined above could not be completed by the two relevant EPW divisions (Queensland Government Procurement or Building Policy and Asset Management) due to either insufficient capacity, or key skills or expertise not being available, or stakeholder relationships not in place as they are for Strategic Initiatives staff. These are the reasons that the Strategic Initiatives team came to be doing this work and it otherwise would not have been able to progress in these two divisions. I have been told there is an expectation that this work may have to be 'absorbed' within the two EPW divisions. It has not yet been determined what will become of the Strategic Initiatives team with restructuring due to the MoG change, or what the workload impacts would be on other staff that might have to 'absorb' the ongoing Strategic Initiatives work.

- Why are the Temporary roles not being renewed?

Reasons given to me include that these staff were working on temporary projects which have ceased and are no longer required. I do not personally agree with this determination as it is contrary to the intent of establishing the team and there is a clear need for the work outlined above. I have also been advised that the roles have not been renewed because there were no permanent roles to appoint them to and that savings targets need to be made. it is my personal view that roles should be created in this case to continue work that is a high value-add to government from a small team of only six current staff. Other staff in similar situations in other parts of the department have had permanent positions created for them and the department should be consistent in this regard.

- What has caused this situation to occur?

Long-term repeated extensions of temporary staff in roles where there should have been much earlier approval to advertise and appoint permanently.

Please advise if you require any further information.

Regards,

Paul” (emphasis added)

  1. [14]
    Also in Attachment A was an email to Mr Hauenschild from Jade McIntyre, a senior HR Consultant in the Department of Housing and Public Works, that said:

“Hi Paul,

Could you please respond to the below questions we have received from Together Union?”

  1. [15]
    The reference to Together Union is a reference to the Together Queensland Industrial Union of Employees (Together) who represents Mr Dodds.
  2. [16]
    Mr Hauenschild’s email was a response to Ms McIntyre’s which in turn was a reaction to communication from Together in relation to their member, Mr Dodds and his temporary position.
  3. [17]
    Of Mr Hauenschild’s email, Mr Dodds, in his written submission made before Commissioner Power, said:

“12. It is also apparent from the work being performed that there will be an ongoing need for the functions Strategic Initiatives provides. A number of the projects that I have been delivering will have workloads that will continue well into 2021 and indefinitely in some cases. I have attached an email from Paul Hauenschild, Director, Strategic Initiatives in response to queries from Together Union about the temporary roles in Strategic Initiatives (Attachment A).” (emphasis added)

  1. [18]
    On this appeal, the State submits that paragraph 12 is misleading.  Mr Hauenschild’s email is addressed to Ms McIntyre, not Together, and therefore is not an email “in response to queries from Together Union”.
  2. [19]
    That criticism of Mr Dodds’ written submissions should be firmly rejected.  Mr Hauenschild’s email is a response to the queries raised by Together to the extent that it addresses them.  That Mr Hauenschild’s email is directed to Ms McIntyre so that she can communicate with Together is beside the point.
  3. [20]
    No application was made by the State to make any oral or further written submissions on the appeal to the QIRC.
  4. [21]
    On 25 March 2021, Industrial Commissioner Power decided the appeal on the papers, delivered extensive written reasons and ordered:

“1. The appeal is allowed.

  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision.
  2. The Appellant be appointed to the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld).”
  1. [22]
    There is now evidence, which was not before Industrial Commissioner Power, that the role being performed by Mr Dodds in fact ended on 31 January 2021, before Mr Dodds’ written submissions were filed and a few days after the State’s written submissions were filed.  The position had ceased to exist before Industrial Commissioner Power allowed the appeal.
  2. [23]
    Of particular significance given the grounds of appeal to this Court, the Industrial Commissioner, at paragraphs [31] and [32] of her judgment, said this:

[31] The information in Mr Hauenschild’s email indicates that the Appellant’s role is no longer to address short-term increases in workload and is therefore not temporary in nature.

[32] The purpose of the Directive[2] includes supporting ‘the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle’. For the Directive to have any meaningful application, it is necessary to examine whether the 'genuine operational requirements' relied upon to deny permanent appointment to the higher classification level are reasonable in the circumstances.”

  1. [24]
    The State has appealed to this Court on the following grounds; that the decision of Industrial Commissioner Power:

“1. Was in ‘excess, or want, of jurisdiction’ within the meaning of s 556(1)(b) of the Industrial Relations Act 2016 (the IR Act) because:

a. the Appellant wasn’t afforded an opportunity to be heard in relation to adverse information that was credible, relevant and significant to the impugned decision, namely ‘Attachment A’ to the Respondent’s reply submissions filed on 15 February 2021; or

  1. Was otherwise affected by an ‘error of law’ within the meaning of s 556(1)(a) of the IR Act because:

a. in deciding the Appellant's decision not to appoint the Respondent was not ‘fair and reasonable’ the Industrial Commissioner misconstrued s 562B(3) of the IR Act and s 149C(4A)(a) of the PS Act in concluding at [33] of the impugned decision that the ‘genuine operational requirements of the department’ could not reasonably result in the Appellant’s application for appointment to the higher classification level being denied.”

Relevant statutory provisions

  1. [25]
    The PS Act governs the employment of public servants in Queensland.  Employees of the State may be appointed to a permanent position and may act in a position of a higher classification level if appropriate.
  2. [26]
    Section 149C concerns the situation were an employee has been acting in a higher position and seeks permanent appointment to that position.  The section provides:

149C Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee
  1. (a)
    is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  1. (b)
    a non-industrial instrument employee;
  1. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  1. (3)
    The employee may ask the department’s chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department’s chief executive must decide the request within the required period.

(4A) In making the decision, the department’s chief executive must have regard to

  1. (a)
    the genuine operational requirements of the department; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (5)
    If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (6)
    If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  1. (8)
    In this section—

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.” (emphasis added)
  1. [27]
    Here, Mr Dodds requested appointment to the higher position.  That request was made under s 149C(3).  There is no doubt that Mr Dodds had been acting in the higher classification position for over one year.  There is no suggestion that Mr Dodds was not eligible on merits.  That request was refused under s 149C(4).  Of particular relevance here is s 149C(4A) which obliges the decisionmaker to have regard to “the genuine operational requirements of the department”.
  2. [28]
    Section 194 of the PS Act[3] and s 197 provide for an appeal to the QIRC from the refusal to appoint Mr Dodds to the permanent position.
  3. [29]
    Sections 562B and 562C of the IR Act govern the appeal to the QIRC.  Those sections provide:

562B Public service appeal to commission is by way of review

  1. (1)
    This section applies to a public service appeal made to the commission.
  1. (2)
    The commission must decide the appeal by reviewing the decision appealed against.
  1. (3)
    The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. (4)
    For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission—
  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.

562C Public service appeals—decision on appeal

  1. (1)
    In deciding a public service appeal, the commission may—
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or
  1. (c)
    for another appeal—set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. (2)
    In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Service Act 2008, a regulation or a directive of the commission chief executive under that Act.” (emphasis added)
  1. [30]
    An appeal from a decision of the QIRC to this Court is governed by s 557 of the IR Act.  That provides:

557 Appeal from commission

  1. (1)
    The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (3)
    However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
  1. (4)
    If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
  1. (5)
    In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.” (emphasis added)

The fresh evidence

  1. [31]
    The proposed fresh evidence is an affidavit of Tiara Bullas, Senior Advisor Employee Relations, Department of Communities, Housing and Digital Economy.
  2. [32]
    Ms Bullas’s affidavit exhibits further emails beyond those in Attachment A to Mr Dodds’ submission.  Of some potential significance is an email of 13 January 2021 in these terms:

“From: EmployeeRelations @hpw.gld.gov.au>

Sent: Wednesday, 13 January 2021 2:48 PM

To: Keith Belding @together.org.au>

Cc: EmployeeRelations @hpw.gld.gov.au>

Subject: RE: Together Union RE Strategic Initiatives Project team

Hi Keith,

Thanks for your below email and for your patience as we sought information from the relevant stakeholders.

In response to your email, I can provide you with the following information:

  • The work being performed by the project team focussed on two major areas- Queensland Government Procurement and Government Employee Housing. This work is now ready to handover to the respective areas for ongoing management (Office of the Chief Advisor, Procurement and Government Employee Housing). The priority work being undertaken by the team is now considered complete. I also understand that some extensions have been granted to project team members to assist with the transition of the completed work in January 2021. The work performed by the project team has been of a high level and this feedback has been provided to the team.
  • In terms of why the temporary positions within the project team are not being renewed, the Intention has always been that the function and resources within the team would need to be agile and respond to corporate priorities. As the priority work the project team was intended to perform has now been finalised, the department does not have a genuine operational need to continue to engage employees in the temporary positions that were established for the purpose of the project team.
  • Regarding your question as to what has caused this situation to occur, the Strategic Initiatives project team (Priority Projects) was established in late 2018 (as a trial) as part of the Strategy and Coordination function within the Portfolio Strategy division of the then department -aundertaking whole-of-department strategy, communication, executive services and Ministerial liaison. The function was required given the size and diversity of the department. In line with Priority Projects being established on a trial basis, the project team was a mix of temporary engagements and placements.
  • As part of the realignment of functions in June 2020, Portfolio Strategy including Strategy and Coordination was disbanded and the resources were reallocated to other departmental areas (Corporate Services, Strategy Policy and Engagement and the Queensland Government Procurement). While Strategic Initiatives reported administratively to the Assistant Director-General, Corporate Services, given the nature of the work being performed related to projects, It was agreed that the Chief Advisor, Procurement would retain day to day supervision of the work until the election. The intention of the temporary transfer of these resources into Corporates Services post-election was designed to give time for these projects to be completed and/or to transition to the responsible areas for ongoing management.

I trust the above information assists. While Grant is on leave, If you need any further information, please contact Jodie Schipper on (07) 3008 3078 or Mark Weinert on (07) 3008 3039.

Kind regards,” (emphasis added)

  1. [33]
    Ms Bullas’s affidavit explains the course of the proceedings before the QIRC and then she says this:

“Based on the directions of Power IC, I did not consider the Department had any ability to respond to the contents of Attachment A to the submissions filed on behalf of Mr Dodds.”

  1. [34]
    It is difficult to comprehend how, in the circumstances where the Industrial Commissioner has made an order that the matter will be dealt with on the papers “unless otherwise ordered”, anyone could conclude that they were not being given the opportunity to apply for an oral hearing and thereby answer the submissions of Mr Dodds.  In any event, Ms Bullas has not been sought to be challenged on her affidavit and it seems that she just completely but honestly misunderstood the effect of the order.

The arguments on appeal

  1. [35]
    The State only relies upon s 557(1) of the IR Act to support its appeal.  In other words, it appeals only in reliance upon an error of law or want of jurisdiction.  The State specifically disavowed any reliance upon the evidence of Ms Bullas in making out the grounds of appeal.[4]
  2. [36]
    This is made clear in the written submissions of the State on this appeal where it is said:

“6. The State seeks leave to adduce additional evidence, namely the complete email chain that properly comprises the series of email communications partially extracted in Attachment A, and the email response actually communicated to Mr Dodds’ union representative on 13 January 2021 regarding the queries raised by him. This evidence is relevant to the outcome which the State seeks on this appeal pursuant to s 558(1)(b) of the IR Act, that is, to allow the appeal, set aside the Decision, and substitute another decision (to affirm the decision of the Assistant Director-General of 24 December 2020).” (emphasis added)

And later:

“7. By s 557(1) of the Industrial Relations Act 2016 (Qld) (the Act), a person aggrieved by a decision of the Commission may appeal on the ground of error of law or excess, or want of, jurisdiction.

  1. The two grounds of this appeal are concerned with s 557(1) only. Accordingly, leave is neither sought nor necessary pursuant to s 557(2).
  2. However, leave is sought to adduce additional evidence pursuant to s 567(2). This is because if the State is successful on either ground of appeal, this Court has the power under s 558(1)(b) to set aside the Decision and substitute another decision. The State contends that the additional evidence sought to be adduced, namely the complete email chain which is only partially represented by Attachment A, and the email response actually communicated to Together ASU on 13 January 2021, will reveal that the genuine operational requirements of the Department - both as at the time of the decision on 24 December 2020 to refuse Mr Dodds’ request for permanent appointment to AO7 Principal Project Officer, and certainly as at the Decision on 25 March 2021 - were such that the permanent appointment could not be sustained.
  3. Accordingly, the State contends that the admission of the additional evidence is ‘appropriate to effectively dispose of the appeal’ in that it provides an evidentiary foundation for the orders sought by the State to dispose of the appeal.” (emphasis added)
  1. [37]
    These passages are confusing in some respects.  However, it does seem clear that Ms Bullas’s evidence can be ignored in determining whether either of the grounds of appeal have been made out.  That is because the appeal is not based on any alleged error of fact.[5]  If either of the grounds of appeal have been established, then it is necessary to determine whether the fresh evidence ought to be admitted in order to determine the appropriate orders consequent upon a successful appeal.
  2. [38]
    The stay application only seeks an order staying the operation of the Industrial Commissioner’s order for so long as the decision on the current appeal is reserved. Reserving the decision for more than a few hours was not necessary.
  3. [39]
    As to the first ground of appeal, the State argues that the directions given by the Industrial Commissioner have effectively denied the State the opportunity to respond to the documents in Annexure A in Mr Dodds’ submissions.  That, the State says, meant that the State had no opportunity to tender the email of 13 January 2021.  That, the State further says, is relevant to the ongoing operational requirements of the State.  It also denied the State the opportunity to establish that the position being temporarily occupied by Mr Dodds had ceased to exist on 31 January 2021.
  4. [40]
    During argument, it was pointed out to the State that the directions of Industrial Commissioner Power clearly contemplated an application being made by the State to make further submissions.  In response, it was submitted that Ms Bullas was not legally trained and that ought to be taken into account when assessing whether procedural fairness had been afforded to the State.
  5. [41]
    Mr Dodds submits that the State had ample opportunity to apply to make further submissions or put in further material.  Mr Dodds relies on the third direction made by the Industrial Commissioner and points to the fact that it was over five weeks between the time Mr Dodds’ submissions were filed and served and the time the orders were made by the QIRC.
  6. [42]
    As to the second ground of appeal, the State points to the order made by Industrial Commissioner Power on the disposal of the appeal when she ordered “the appellant be appointed to the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld)”.  The State submits that such an order is beyond jurisdiction.  It is common ground on the appeal before me that as that order is presently framed it is beyond jurisdiction.  That is because the consideration is whether the employee should be appointed to the specific position being temporarily occupied, not whether in a broader sense the employee ought to be appointed to a position of that classification, here AO7.[6]
  7. [43]
    Mr Dodds says the framing of the order is an error and should merely be corrected.  However, the State submits that the form of the order, and other aspects of the Industrial Commissioner’s reasons for judgment, show that the Industrial Commissioner has asked herself the wrong question and has therefore committed jurisdictional error.[7]
  8. [44]
    Mr Dodds accepts that if the Industrial Commissioner in fact asked herself the wrong question, then jurisdictional error would be demonstrated.  However, he submits that any fair and proper reading of the reasons for judgment leads to the conclusion that the Industrial Commissioner has not only asked herself the correct question but has carefully considered it and drawn logical conclusions.[8]
  9. [45]
    During the course of oral argument on the appeal before me, submissions were made that the Industrial Commissioner had not properly understood or applied the notion of the organisational requirements of the State.  Those submissions may or may not have fallen outside the bounds of ground 2 of the application to appeal, but certainly were submissions beyond the scope of the written submissions that had been filed by the State on the appeal pursuant to directions issued by the Registrar.  In those circumstances, those submissions ought to be ignored. 

Consideration of ground 1

  1. [46]
    As previously observed, the State did not seek to tender the fresh evidence (the affidavit of Ms Bullas) on the hearing of the substantive appeal.  In other words, I would determine, relevantly here ground 1, without reference to that evidence.  Given the approach taken by the State, it is only if I find one of the grounds of appeal as established that I have regard to that evidence in formulating the appropriate order.
  2. [47]
    There can be no doubt that the State had the right to be given an opportunity to put its case properly.[9]  Mr Dodds does not argue to the contrary.
  3. [48]
    The first issue is whether the State was given that opportunity.  That involves a consideration of the third direction given by Industrial Commissioner Power on 18 January 2021. 
  4. [49]
    Without reference to Ms Bullas’s affidavit (as it is not in evidence relevantly here), the question is simply one of construing the order.  In my view, direction 3 conveyed, sufficiently enough, the right of either party to seek directions to make oral or further submissions.
  5. [50]
    The submission made by the State that regard should be had to the fact that Ms Bullas was not legally trained is tantamount to a submission that the State ought to be regarded, in the assessment of procedural fairness, as an unrepresented litigant.  Of course, that submission ought to be rejected.  Of course, State departments have access to legal advice.
  6. [51]
    Ground 1 also fails for other reasons.  Firstly, without Ms Bullas’s affidavit, there is no explanation at all as to why the State did not attempt to respond to Mr Dodds’ written submissions.  Also, without Ms Bullas’s affidavit, there is no evidence of what further material would have been tendered or what further submissions would have been made.  There is also no evidence that the AO7 position in fact ended on 31 January 2021.  Mr Hauenschild’s email showed a continuing need for the services provided by Mr Dodds.
  7. [52]
    Consequently, the State had some five weeks to apply to make further submissions and that was not done.  This is not a case where the State was not given an opportunity to put its full case.  This is a case where the State did not put its full case.
  8. [53]
    Ground 1 fails.

Consideration of ground 2

  1. [54]
    In paragraph 2 of the Industrial Commissioner’s judgment, she says this:

[2] At the time the appeal notice was filed, the Appellant had been acting in a higher classification role as an AO7, Principal Project Officer within Strategic Initiatives (formerly Priority Projects), Corporate Services (the ‘higher classification level position’) since 3 December 2018.”

  1. [55]
    It can be seen that the position actually being filled by Mr Dodds, namely “AO7, Principal Project Officer within Strategic Initiatives (formerly Priority Projects), Corporate Services”, was defined by the Industrial Commissioner for the purposes of the judgment as “the higher classification level position”.  The Industrial Commissioner does refer from time to time to “the higher classification level” and that might, in some respects, be said to support the State in its prosecution of ground 2 of the appeal.  However, the judgment has to be read fairly and as a whole.  When that exercise is done, it is obvious that the Industrial Commissioner has in fact asked herself the correct question.
  2. [56]
    After dealing with principles relevant to the appeal to the QIRC,[10] the Industrial Commissioner turned to consideration of the decision to be reviewed.  At paragraph [8], the Industrial Commissioner said this:

[8] On 4 December 2020, the Appellant requested that he be permanently appointed to the higher classification level.”

  1. [57]
    That paragraph cannot though be construed so as to conclude that the Industrial Commissioner thought that Mr Dodds was seeking to be appointed to any job with “the higher classification level”, ie AO7.  This is made clear from paragraph [9] of the judgment where the Industrial Commissioner refers to the reasons for the decision not to appoint him.  That clearly refers to “the position of AO7, Principal Project Officer … within Priority Projects, Corporate Services”.
  2. [58]
    After considering her jurisdiction,[11] the Industrial Commissioner then identified the grounds of appeal.[12]  There, she referred to “the higher classification position” clearly being a reference to the actual position being temporarily held by Mr Dodds.[13]
  3. [59]
    The Industrial Commissioner then turned her mind to the various submissions which had been made in writing pursuant to the directions made on 18 January 2021.  Those submissions clearly referred to Mr Dodds being appointed to the particular position, not just any position which carried an AO7 classification.
  4. [60]
    The Industrial Commissioner then turned to consider the case and at paragraphs [17]-[18], she said this:

[17] To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable.

[18] The decision determined that the Appellant’s higher duties engagement was to continue according to the terms of the existing temporary placement, declining the Appellant’s request for permanent appointment to the higher classification position.”

  1. [61]
    It can be seen that in paragraph [18] the Industrial Commissioner refers to the appellant’s request “for permanent appointment to the higher classification position” being declined.  When one properly understands paragraphs [17] and [18], the Industrial Commissioner is asking herself this question:

“Whether the decision declining Mr Dodds’ request for permanent appointment to the higher classification role as an AO7 Principal Project Officer within Strategic Initiatives (formerly Priority Projects), Corporate Services[14] was fair and reasonable.”

  1. [62]
    That is the correct legal question.
  2. [63]
    The Industrial Commissioner then turned her mind to some factual issues, directed herself on s 149C of the PS Act and identified “genuine operational requirements of the department” as a relevant consideration.  She then said this:

[25] The question in this matter is whether there was an authentic need for the Appellant to be appointed to the higher classification position on tenure, having regard to the appropriate management of the public resources of the Respondent.”

  1. [64]
    In context the reference to “high classification level” was obviously a reference to the particular AO7 position.
  2. [65]
    The Industrial Commissioner then went on to consider Mr Hauenschild’s email and concluded at paragraph [33]:

[33] On balance, it appears that the nature of the Appellant’s role is no longer to meet an unexpected short-term increase in workload and consequently, a consideration of the genuine operational requirements of the Respondent would not reasonably result in the Appellant’s application for appointment to the higher classification level being denied..”

  1. [66]
    It is therefore clear, in my view, that the Industrial Commissioner both posed and answered the correct question.  Order number 3 made by her on the appeal to the QIRC does not though properly reflect the reasons given and the conclusions made.
  2. [67]
    The appeal should be allowed to the limited extent of setting aside order 3 and replacing it with:

“3. Glenn Dodds be appointed to the higher classification level role as an AO7, Principal Project Officer within Strategic Initiatives (formerly Priority Projects), Corporate Services.”

What orders should be made/the fresh evidence

  1. [68]
    For the reasons I have given, the appeal ought to be dismissed except for the purposes of correcting order 3 as I have explained.  The fresh evidence ought to be admitted for the purposes of fashioning appropriate orders.
  2. [69]
    A practical problem arises in that it is common ground that Mr Dodds’ acting position has ceased to exist.[15] 
  3. [70]
    Therefore, the State says, it cannot comply with the order.  It seeks a stay while arrangements can be made to accommodate Mr Dodds into some other position.
  4. [71]
    As a matter of practice, there will no doubt now be negotiation between the State and Mr Dodds as to how the order of Industrial Commissioner Power, as varied on appeal, is now implemented, and as to what the ramifications might be.  That is all not a matter for me on the present appeal.  It may lead to further proceedings in the Commission or elsewhere.  However, the parties have urged me to give liberty to apply on the appeal so that they can return and seek further orders if they think further orders by the Court are appropriate.
  5. [72]
    I should accommodate that request.

Formal orders

  1. Order 3 made by the Queensland Industrial Relations Commission on 25 March 2021 be set aside.
  2. In lieu of order 3 it is ordered:

“Glenn Dodds be appointed to the higher classification role as an AO7, Principal Project Officer within Strategic Initiatives (formerly Priority Projects), Corporate Services.”

  1. The appeal is otherwise dismissed.
  2. Liberty to apply to both parties.

Footnotes

[1]  When the position apparently came to an end.

[2]  Reference to a directive relevant to ss 98 and 99 of the Public Service Act 2008.

[3]  In particular s 194(1)(e).

[4]  State’s written submissions, paragraphs 6 and 7-11.

[5]  Reliance on s 557(2) was disavowed.

[6]Cox v State of Queensland (Queensland Health) [2021] QIRC 99 at [16]-[18].

[7]  Generally, see Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.

[8]  Generally, as to the function and content of reasons for the exercise of judicial or administrative power see Keith v Gal [2013] NSWCA 339 at [109]-[119] and the case there cited.

[9]Kioa v West (1985) 159 CLR 550 at 628-629.

[10]  Paragraphs [4]-[7].

[11]  Paragraphs [10]-[12].

[12]  At [13].

[13]  See paragraph [2] of the decision of the QIRC.

[14]  Which she had defined in paragraph [2] as “the higher classification level position”.

[15]  See generally Scott v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 126 at [75]-[78].

Close

Editorial Notes

  • Published Case Name:

    State of Queensland v Dodds (No 2)

  • Shortened Case Name:

    State of Queensland v Dodds (No 2)

  • MNC:

    [2021] ICQ 9

  • Court:

    ICQ

  • Judge(s):

    Member Davis J P

  • Date:

    10 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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